Thursday, 15 April 2010

Sending innocent people to prison and keeping them there are among the worst mistakes government can make. It has happened at least a dozen times in Florida, by one group's count.

Florida could learn from those mistakes -- and, possibly, prevent them in the future -- if the Legislature supports a state senator's push for an "innocence panel."

The senator, Mike Haridopolos, R-Merritt Island, added a budget amendment last week that would provide $200,000 for a commission to "examine why people have been sent to state prison for crimes they didn't commit," according to an article in Florida Today. The panel also would work "to prevent more innocent people from going to jail."

A group of attorneys suggested the panel idea to the Florida Supreme Court last year. Last month, the court expressed support for the suggestion but noted a lack of funding for implementation.

Haridopolos' measure aims to clear that hurdle, although $200,000 may not be enough, experts say. Still, it's an important step that deserves the Legislature's backing.

Florida prisoners exonerated

In Florida, 12 prisoners have been exonerated by post-conviction DNA testing since 2001, according to the Innocence Project. The group is a national network that specializes in using DNA evidence to clear people wrongly convicted of serious crimes.

Anthony Caravella, imprisoned for 26 years after being found guilty of a Broward County rape and murder, was Florida's 12th person to be freed by the process. The 1983 crime occurred before DNA testing was available. But last year, the evidence was put to the test. Final results, made public last week, confirmed that his DNA was not found on crime scene materials. The hunt for the real killer continues.

In another case, Alan Crotzer was released from state prison in 2006 after spending 24 years incarcerated for crimes he didn't commit. Crotzer was arrested in 1981 and charged with robbery, kidnapping and sexual battery in connection with crimes committed in Tampa. He was convicted and sentenced to 130 years. He was released after being vindicated by a series of DNA tests and other discoveries. A court vacated his conviction and sentence.

Two years ago, the Legislature appropriately provided Crotzer with $1.25 million to compensate for his wrongful imprisonment, which was the result of flawed testimony from witnesses and the use of questionable tactics by the prosecution.

Four key factors

The Innocence Project has found that at least one of four key factors often plays a role in wrongful convictions. Those factors are:

Use (and misuse) of scientifically unproven forensic techniques. Comparative bullet-lead analysis, for example, is considered questionable.

False confessions -- particularly when the defendant is a juvenile, has diminished mental capacity, or is under duress. (Caravella, just 15 when charged and with an IQ considered mildly mentally retarded, is one example.)

"Snitch" testimony, which can be highly unreliable.

Criminal justice procedures are needed that reduce the incidence of these errors prior to conviction -- and that provide opportunities for post-conviction relief.

The Innocence Project advocates legal reforms that include requirements to preserve DNA evidence in all cases of serious crime; recording interrogations in their entirety; double-blind police lineups and photo identification procedures; and policies that reduce obstacles to DNA testing late in the "justice cycle."

Compensation for the wrongly convicted and help as they re-enter society are also needed.

Florida already has instituted some of these reforms, but more are necessary.

An "innocence panel," exploring the "how" and "why" of wrongful convictions, would be a powerful, positive step.

Wednesday, 14 April 2010

Shortly after he opened a church-based office to help poor people with legal problems, Brooks Harrington took up the case of a woman who faced jail for not paying child support. She was indigent and unemployed and hadn't received the hearing to which the Constitution entitled her.

Harrington challenged the entire process by which his client could be sentenced to jail and persuaded the judge to drop the contempt conviction.

A lawyer and ordained Methodist minister, Harrington applies the same thoroughness and tenacity to representing clients who can't pay that he used while becoming one of the most successful defense lawyers in North Texas.

Now representing battered women and children, he believes he's answered his calling.

But in December came shattering news: A man Harrington helped send to prison for murder in 1982 was being released because DNA testing showed he was the wrong guy.

A Washington, D.C., jury had convicted Donald Eugene Gates of shooting and raping Georgetown University student Catherine Schilling in Rock Creek Park, not far from the Kennedy Center.

As an assistant U.S. attorney, Harrington prosecuted Gates and had been certain a dangerous man was kept from harming other women.

But he was wrong.

That left him sick and sleepless: What red flags had he missed? What would happen to Gates, who had been homeless 28 years ago? Where was the real killer? Were other convictions flawed?

And there was the sobering reality that "You can do your best and the system still fails."

Texas' criminal justice system has taken a beating because of case after case in which DNA testing has revealed wrongful convictions.

In response, state leaders have explored ways to boost accuracy, such as monitoring crime labs better, recording interrogations and improving eyewitness identification procedures.

But it isn't just Texas that needs self-examination. It doesn't take callousness or wrongdoing to cause injustice; even good people doing their jobs in good faith can make mistakes.

Harrington, a former Marine from Fort Worth, spent five years in the U.S. attorney's office, handling some of the toughest cases. He visited neighborhoods where tourists don't go and the only hopeful voices came from African-American churches.

He still sees the scene of a couple's murder-suicide, where a 3-year-old sat crying so hard no sound came out and the dead man's blood dripped through the floor, puddling next to a mattress where two toddlers slept.

He knew the system didn't always work. In 1981, he did the legwork to free a man wrongly charged with rape based on mistaken identity. The charge was dismissed the day of the trial.

In Gates' case, the prosecution relied on several pieces of evidence.

An FBI analyst testified that Gates' hair matched one found on the victim. Harrington said the defense team's analyst didn't dispute the match, just the odds that it was Gates' hair.

A paid informant said Gates had confessed. Harrington said he "pushed the informant hard" to test the validity of his story.

"The more time I spent with him, the less I liked him and the more I believed him," he said.

The jury also heard about Gates attacking another woman in the park not long before Schilling was killed.

Gates maintained he didn't commit the murder but lost his appeals.

Harrington, meanwhile, came back to Fort Worth in 1983. He quit private law practice in 1990, spent five years co-pastoring a church in a low-income neighborhood, then took up medical malpractice defense. In 2006, he started the Methodist Justice Ministry at First United Methodist Church Fort Worth.

He wasn't aware that in 1997, a Justice Department report raised questions about the FBI analyst's testimony in a case involving a federal judge. The credibility of the analyst's work in Gates' case wasn't reviewed by the U.S. attorney's office for years.

A public defender sought more DNA testing for Gates in 2008, and today's sophisticated tests determined he didn't match the specimens found on Schilling.

In a letter the day before Christmas, Harrington told Gates he was sorry, included his phone number and enclosed a money order.

Gates wrote back, "I forgave you long ago and now consider you my friend."

Harrington called that "the greatest gift I've ever received."

Gates is entitled to compensation from the government, but it's not yet clear how much.

He's living in Tennessee, though he recently told Harrington he can't find work and is feeling stressed.

There are many pressures on those within the criminal justice system: to protect the public, get convictions, move the sheer volume of cases. Mistakes are inevitable. But they can't be taken lightly.

"Everybody did their best, and we convicted the wrong guy, and that's terrifying," Harrington said.

"The mindset has to be one of fear and humility: Fear of convicting the wrong guy and humility about your own judgment."

AUSTIN -- After months of delay and internal upheaval, the revamped Texas Forensic Science Commission is poised to reopen discussion of the Cameron Todd Willingham case when it meets April 23 in Irving.

Tarrant County Medical Examiner Nizam Peerwani, appointed to the panel in December, is likely to play a central role in the inquiry to determine whether a flawed arson investigation led to Willingham's execution in 2004.

The commission also includes two other members from Fort Worth: defense attorney Lance Evans and Jay Arthur Eisenberg, a professor and chairman of the department of forensic and investigative genetics at the University of North Texas Health Science Center at Fort Worth.

The meeting will mark the first time that the commission has revisited the Willingham case since a membership shake-up halted the inquiry more than six months ago.

"I think the commission is looking forward to being able to get down to work," said Evans, who was appointed in October.

Willingham, an unemployed Corsicana mechanic, was convicted of setting a house fire in 1991 that killed his three daughters. But several fire experts, including one hired by the commission, have challenged the arson findings, raising the possibility that the fire may have been accidental.

Controversy, criticism

The case has drawn national attention, becoming a rallying point for anti-death penalty groups saying Texas may have executed an innocent man on Gov. Rick Perry's watch. The controversy intensified in the fall when Perry replaced four of the nine commissioners.

Commission Chairman John Bradley told the Star-Telegram in e-mails last week that the commission will discuss the Willingham case and other pending complaints when it meets at the Omni Mandalay Hotel at Las Colinas. It is not known how long resolving the Willingham case will take.

Bradley, who is the Williamson County district attorney and was named by Perry to replace ousted Chairman Sam Bassett, came under fire at a legislative hearing last week for what critics suggested was a heavy-handed leadership style that stifles public discussion. Bradley, who was not at the hearing, later called the assertions unwarranted and his approach fair and inclusive.

"I'm not knocking their right to criticize," Bradley said. "I'm just suggesting that it isn't a balanced view of our work."

A new approach

In a meeting in January, the restructured commission adopted policies and procedures that Bradley said were necessary before the commission can move forward on pending investigations, including the Willingham case.

The new policies call for creating separate panels to screen complaints and handle investigations, with recommendations ratified by the full commission. Panel members are appointed by the chairman, subject to approval by the commission.

Bradley declined to discuss the commission's investigations, but three other commissioners said the Willingham inquiry has been tentatively assigned to a three-member investigation panel: Bradley, Peerwani and Sarah Kerrigan, a forensic toxicologist and director of a regional crime lab at Sam Houston State University in Huntsville.Bradley, Peerwani and Eisenberg are also on a committee that will valuate complaints and recommend to the full commission whether they should be pursued. If the commission votes to go ahead, complaints are assigned to three-member investigative panels that will present their findings to the full commission.

Still up in the airPeerwani said that the screening committee has scheduled a meeting for Thursday in his Fort Worth office but that members of the second panel who were assigned to the Willingham case have yet to get together. It remains unclear to what extent the Willingham panel will rely on the previous work of the original commission, but Peerwani hopes that the panel won't have to start from scratch.

"We do have a lot of material that the commission has collected," said Peerwani, who has been Tarrant County's medical examiner for 30 years. "I don't think we have to go back and restart all those investigations."

But "it's still up in the air. I don't know what the commission is going to do," he said.

Eisenberg, a member of the commission since October 2006, said he is "pleased that we're going to get back to the discussion."

"We had invested a lot of time and effort in terms of the material," Eisenberg said.

Renewed inquiry

One crucial element from the original inquiry was a report that was prepared for the commission by Baltimore fire expert Craig Beyler, who concluded that the arson investigation that led to Willingham's conviction was based on outmoded techniques and could not sustain a finding of arson.

The commission agreed to look into the case after receiving a complaint from The Innocence Project, a New York-based advocacy group, in December 2006.

Beyler, whom the commission hired December 2008, submitted his report in August 2009 and was scheduled to appear at a commission hearing that was abruptly canceled after the membership shake-up in September. Beyler told the Star-Telegram late last week that he has not been invited to the upcoming meeting.

Under the new policies and procedures, the commission can find that a "forensic analysis met the standard of practice that an ordinary forensic analyst would have exercised at the time the analysis originally took place."

Other options are concluding that the evidence did or did not sustain a finding that "professional negligence or misconduct" occurred in a forensic analysis and taking "such other action as appropriate."

'Quagmire of delays'

The restructured investigative approach -- which may still have to be formally ratified at the upcoming meeting -- has raised questions among Bradley's critics, who believe that it may give him too much power over the Willingham case.

Bradley's appointment by Perry-led accusations that the governor was trying to dictate the outcome of the Willingham case to avoid potentially embarrassing findings, assertions that Perry and Bradley have denied.

"The notion that he would be on this particular committee in light of everything that has gone on in the last year is particularly inappropriate," said Rep. Lon Burnam, D-Fort Worth. "A suspicious mind would be concerned about nefarious activities."

Burnam, who said he plans to attend the upcoming meeting, also expressed concerns that the new approach would keep the investigation out of the public eye. "It runs contrary to every gut instinct I have about how government should work," he said.

Bassett, the former chairman who has criticized Bradley's approach, said the creation of the panels would differ from previous practice, in which the commission conducted inquiries as a body. He said Bradley's presence on an investigative panel would give him more control over the ultimate outcome.

"He can have an influence over what's written, there's no question," said Bassett, an Austin defense attorney. "I don't think it's improper. I'd say it's more a question of personal style. I would have preferred the entire commission to debate the findings that are going to be in the draft report rather than just three people."

At last week's hearing of the House Public Safety Committee, Rep. Tommy Merritt, R-Longview and committee chairman, sharply challenged Bradley's insistence that new policies and procedures were needed before the commission could move forward on investigations.

The result, he said, was "a quagmire of delays" that needlessly stalled the work of the committee.

But Bradley, in e-mails after the meeting, defended the new rules. "Previously the Commission literally had no written guidelines. There was no definition of misconduct or negligence. There was no written process for how to accept or investigate a complaint."

Bradley also disputed assertions that he single-handedly prepared the new policies and guidelines, saying they were drafted by a committee that included Eisenberg and Evans, and were "debated and amended considerably" at the commission's last meeting. He called the product "very much a collaborative effort.

"No doubt it will be revisited, but it does give us a strong set of policies and procedures from which to work," he said.

Sunday, 4 April 2010

We have had some new news on the Florida Actual Innocence Commission front. We had previously discussed this idea on Plain Error a few months back here and here. The Innocence Commission got some mixed news last week.

The court is very much interested in looking at the cases of actual innocence and is considering the establishment of a commission or task force to study this issue and to make recommendations. We are most appreciative of your interest in and support of this effort, and hope that we can additionally count on the support of the Legislature during this session.

Justice Quince noted that the budget for the Gender Bias Study Commission over a three year period was $321,589, peaking at about $146,000 in fiscal year 1988. The Racial and Ethnic Bias Study Commission had a $378,350 budget over five years, with the highest yearly appropriation at $278,350 in fiscal year 1991. Of course, Justiece Quince noted, that these figures needed to be adjusted for the passage of time. This was a very positive letter.

In response to Sandy D’Alemberte’s petition to the Florida Supreme Court to create the Commission by rule, Chief Justice Quince sent Mr. D’Alemberte a separate letter stating that they were denying our petition to create the commission, BUT:

The Court, however, is very much interested in looking at the cases of actual innocence, and is considering the establishment of a commission or task force by Administrative Order,” she wrote. “As we explore the best avenue to make inquiries on this subject, we welcome any input you or your colleagues may have concerning funding sources, etc.

Since the letters, both the Daytona Beach News Journal and Jesse Diner, President of the Florida Bar have made impassioned pleas for the Supreme Court to create this Commission.

So it seems that either the court was blowing smoke or they are completely serious about implementing the Innocence Commission if they can just find the money in these tough economic times.

Well, as of this morning, we are likely going to find out the Court’s real intentions. Florida Today is reporting that Senator Mike Haridopolos is seeking to include $200,000 in THIS YEAR’s budget for the establishment of the Innocence Commission. That funding, as well as his pledge of staff support, should be enough to get this thing off the ground:

“This is really a two-way street,” Haridopolos said. “It will protect accused people who are innocent of crimes, but also give people the confidence to know that the people in prison are guilty.”

Politics is a funny business. I think it would be fair to say that Senator Haridopolos and I would agree on little in terms of the big public policy issues of the day. But he has been one of the strongest leaders on innocence issues in his time in the Senate, beginning with his sponsoring of the Dedge compensation bill, continuing with the sponsorship of the Dillon claims bill, and now his pursuit of an Innocence Commission.

Let’s give credit where it is due. If you get a chance, drop the good Senator a line and thank him for his leadership and commitment to this issue:

Yesterday I wrote, prematurely in hindsight, that because an amendment was offered to the state budget to appropriate $200,000 to the Florida Supreme Court for the creation of the Innocence Commission, that the ball was in the FSC’s court to actually create the Commission.

This of course is only partly true. Late yesterday, the Senate approved the amendment. Now this budget item must make its way into the House Budget, either through amendment or in conference, and then the Governor has to sign the budget into law.

Only at that point, will the burden shift to the Florida Supreme Court to get this Commission moving.

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